Skip to comments.Scalia’s Absolutely Wrong About Absolute Rights
Posted on 04/09/2003 10:19:45 PM PDT by sourcery
Speaking to an audience at Cleveland University, Supreme Court Justice Antonin Scalia recently said that individual rights can and will likely be curtailed in wartime. In explaining his position, he said that "the Constitution just sets minimums" and that "most of the rights that [Americans] enjoy go way beyond what the Constitution requires." The Iraq war will probably mean that "[rights] protections will be ratcheted right down to the constitutional minimum."
It is true that the Constitution sets minimums, but Scalias unspecified view of where those minimums reside is unsettling.
The Constitutions prescribed minimums of personal freedom emerge from its enumerated maximums of government power. If Scalia were to read the Bill of Rights properly, he would understand that the freedoms Americans currently enjoy do not "go way beyond what the Constitution requires." In the absence of any specific constitutionally authorized government powers that can legally interfere with these freedoms, everyday American liberties are guaranteed under the umbrella of the ninth and tenth amendments, which protect rights not specifically guaranteed in the Constitution and reserve to the states and people all powers not granted to the federal government.
Indeed, there are a number of rights mentioned in the Constitution currently not respected in full because the government has acted "beyond what the Constitution requires." Freedom of speech, the right to bear arms, freedom from unreasonable search and seizure, and the right to a jury trial have each suffered fundamental and severe erosion over the years, and to this day.
That Scalia thinks the freedom we currently have is above and beyond the Constitutional mandate is disturbing enough. His prediction that those freedoms will decline in wartime to that mandate wherever he imagines it to be is downright terrifying.
History shows us what happens when politicians "ratchet" American freedoms "down to the [perceived] constitutional minimum."
During the War Between the States, Abraham Lincoln suppressed and closed down over a hundred Union newspapers, implemented conscription, deported political enemies, and suspended habeas corpus, jailing thousands of dissenters without trial. The Supreme Court objected, but Lincoln simply ignored them.
During World War I, Woodrow Wilson drafted 2.8 million Americans, the German language was barred from public schools, and Congress passed a number of nasty laws including the Sedition Act, which made simple criticism of the U.S. government, its flag, its military uniforms, or its allies a highly punishable offense.
The law was brutally enforced: socialist activist Eugene V. Debs went to prison for ten years for an antiwar speech he made, and movie producer Robert Goldstein was sentenced to ten years in prison for his patriotic movie, Spirit of 76, about the American Revolution, in which he characterized Britain U.S. ally in World War I, American enemy in the Revolution in a bad light. The Supreme Court upheld these absurd violations of free speech, explaining that war made such extreme measures necessary.
During World War II, the draft returned to take hold of ten million young men. This time, the Supreme Court not only upheld the draft but argued that pretty much anything else the government wanted to do must also be constitutional because such exercises of power were clearly more benign than the authority to force Americans into combat. American civil liberties hit an absolute low point in World War II when Franklin Roosevelt signed Executive Order 9066, which forced 110,000 Japanese Americans into internment camps an order the court also went along with.
Incidentally, conservatives who consider such encroachments on civil liberties to be justified in times of war should look at where their pet nuisances high taxes and big government originated. The War Between the States saw the beginning of fiat money and the income tax. World War I brought massive nationalization of industries and maximum income tax rates of 77 percent. World War II meant even more central planning, maximum income tax rates of 94 percent and the birth of Income Tax withholding.
The Constitution was established for the exact purpose of restricting the government from interfering with absolute rights, especially in the most precarious of times for liberty, such as wartime.
One must wonder whether Scalia could justify all the above mentioned historical examples of erosions of liberty as fitting within the minimums of freedom set in the Constitution, as he reads it. If so, and if any of the new and increasingly freedom-threatening War on Terrorism measures goes to the Supreme Court, hopefully Scalias eight robed colleagues will have more of a strict constructionist interpretation and understanding of the Constitution.
To the House of Representatives of the United States:
Having considered the bill this day presented to me entitled "An act to set apart and pledge certain funds for internal improvements," and which sets apart and pledges funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense," I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.
If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.
President of the United States
He's just made to seem that way by taking his comment out of context.
Freeper Steelerfan was at that speech and here's what he had to say about the remark:
"I was at the speech and that is not what he said. As usual the paper got it completely backwards. His point was that all sorts of "rights" such as a constitutional right to abortion have been grafted onto the constitution when the document is silent about the issue. His argument was that such "rights", if they exist, are not constitutional in nature. He started the speech by explaining his four principles of constitutional interpretation: text; tradition; original intent and Permanency . As he put it, "we have an enduring constitution, not a living one." On the whole, and for what it is worth, I was very favorably impressed with the speech. "
Correct. It's a "living" document, whose meaning is determined by zeitgeist and the ever changing winds of history. In short, it means nothing at all.
Yes, that's true--if by 'absolute right' one means that having such a right justifies violation of the rights of others. But the principle that no such right is valid applies just as much to the government as it does to any individual.
However, I assume (or at least hope) that the author of the article didn't mean 'absolute' in that sense. I think he meant 'inalienable,' which means that the right is intrinsic to an individual, not a privilege that can be granted or revoked by others.
The fundamental right is the right to Liberty, which is the right to do whatever is not wrong. In other words, it is the right to do anything that does not violate the rights of others. This right is analogous to the presumption of innocence, where the burden of proof is on those who would claim that someone is guilty of a crime. Similarly, the right to Liberty requires that those who object to the rightfulness of an action prove that it is wrong, by showing it violates the rights of others.
Without the assumption of virtue provided by the right to Liberty, no one would even have the right to present an argument regarding what might or might not be a right. To deny the right to Liberty is to deny your own right to claim anything whatsoever.
Something must have intervened after 1817
Yes, society's understanding of the Constitution went from bad to worse. One major turning point came during the Great Depression, when the Supreme Court changed its mind on the meaning of the Commerce Clause due to political pressure from Roosevelt.
I'm not very clear what your citation has to do with the Draft, and with Internment--the two subjects I raised.
Would you comment as to why you would object to the Draft, if doing so spelled GREAT peril to National Security?
The fundamental principle involved is that one person's need, no matter how dire, justifies his violating the rights of someone else. My need for cash, no matter how dire, does not justify my taking it out of your bank account without your consent. My need for a heart transplant does not justify my taking your son's heart out of his chest. My need for self defense does not justify my forcing you to serve as a personal guard or police force.
If the needs of one person do jot justify violation of the rights of others, then the same is true of any group of persons, even society as a whole. No group can have any rights that none of its members possess as individualsj, because the rights of any group derive solely from the individual memebers.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.